Sotomayor on Acquitted Conduct?

There is a lot of discussion on Sentencing Law and Policy about judges using acquited conduct at sentencing (see the posts here and here) in light of a recent Eight Circuit opinion. In that case, United States v. Papakee, Judge Bright wrote separately to call on the Supreme Court to address the Due Process implications of sentencing a person based on acquitted conduct, saying,

“the use of ‘acquitted conduct’ at sentencing in federal district courts is uniquely malevolent.” Id. (Bright, J., concurring). We must end the pernicious practice of imprisoning a defendant for crimes that a jury found he did not commit. It is now incumbent on the Supreme Court to correct this injustice.

Jurors want their jury service to matter, and they think that they are playing an important role in our collective civic life. But that’s just not true if judges are free to ignore what juries decide.

After Judge Bright’s concurring opinion, Papakee will, doubtless, file a petition for certiorari to have the Supreme Court review the issue. If it does, what will the Court’s newest member, soon-to-be-Justice Sotomayor think about the acquitted conduct issue?

I think there’s reason to be hopeful. Judge Sotomayor is a big fan of juries. As reported in the L.A. Times (which incorrectly says Sheldon Whitehouse is a senator from Maryland), soon-to-be-Justice Sotomayor said in her confirmation hearings that

I have found in my experience with juries that virtually every juror I have ever dealt with came away heartened and more deeply committed to the fundamental importance of their role as citizens in that process.

Surely, if cert is granted, the woman who said that is not going to say to those jurors, in effect, “thanks for your service, but we don’t care.”